On February 1, 2022, the Office of Federal Contract Compliance Programs (OFCCP) opened its new Federal Contractor Portal (Portal) for one-time registration and updated its website landing page with a Federal Contractor User Guide and additional FAQs. As previously reported, the OFCCP has implemented an annual affirmative action plan (AAP) certification process, which requires covered federal contractors and subcontractors (contractors) to register for the Portal and then annually certify they are meeting their existing requirement to develop and maintain annual AAPs. At this time, the Portal is open only for registration — it will not open for certification until March 31, 2022. The OFCCP encourages contractors to complete registration by March 30, 2022 to avoid any delays in the certification process.
Types of Contractors Required to Register and Certify
The OFCCP’s annual certification requirement applies to supply and service contractors that must prepare AAPs (generally those who hold a contract of $50,000 or more and employ 50 or more employees). Contractors that are solely construction contractors (and are not also supply and service contractors) are not required to certify compliance and should not register for the Portal.
Although contractors will be required to certify their compliance annually, they must register for the Portal only once. For contractors that submitted a 2018 EEO-1 report, company-related information from that report (e.g., business name, parent name, DUNS, NAICS and EIN numbers) will prepopulate in the Portal for the contractor and each of its establishment locations. Contractors will then be directed to verify and edit that information. Contractors that do not submit EEO-1 reports (including colleges and universities) must self-input the company-related information of the parent company. During registration, contractors will also input additional establishments or functional/business units to the parent company’s record as needed.
During the OFCCP’s February 1 Webinar on Registering for the Contractor Portal (Webinar), the OFCCP explained that companies with multiple EEO-1 identifiers can use the same process for the Portal that they use for filing EEO-1 reports. The OFCCP, however, is assuming that the AAPs of contractors with more than one establishment (or functional/business unit) neatly align with their historical multi-establishment 2018 EEO-1 reports. Ultimately, parent companies are responsible for editing or adding data as needed to ensure that each of their current AAP establishments (or functional/business units) have registered for the Portal and then subsequently certify their compliance.
For contractors with multiple establishment locations, the Portal allows multiple users from the same company to register, update records, and certify establishments (or functional/business units). There are two types of users: admin users and non-admin users. Admin users can modify all records within the company, invite new users, and assign those users to establishments or functional/business units. Non-admin users can modify records only for the establishments or functional/business units that will be assigned. Note that the individual who first registers the contractor for the Portal will, by default, be an admin user. Because the admin user must grant access to designated individuals at establishments or functional/business units, the OFCCP recommends that the initial admin user work for the parent company and have authority to grant that access. Contractors may grant access to as many admin users and non-admin users as needed.
Upcoming Certification Requirements
The Portal’s certification function will not open until March 31, 2022, and therefore contractors are not yet able to certify whether they are meeting their existing requirement to develop and maintain annual AAPs. The OFCCP will conduct another webinar about the certification process on March 31, 2022, but previewed that contractors will be required to certify whether they have current AAPs in place as of the certification date. For example, a contractor with a July 1, 2021 AAP in place may certify on June 1, 2022 that it has a current AAP in place because its AAP has not expired. Furthermore, if a contractor has an AAP with a renewal date that occurs after the certification period ends on June 30, 2022, the contractor does not have to first update its AAP before certifying compliance. The OFCCP also stated that contractors that do not timely certify compliance will be more likely to be selected for a compliance evaluation.
These processes and requirements are still developing and will be covered in future alerts. If you have questions or need assistance in developing compliant AAPs, please contact a member of Faegre Drinker’s OFCCP and affirmative action compliance team.